Efforts to explain away the criticism by Owen’s colleagues of her conservative judicial activism

Much of Owen’s second hearing centered around an attempt by Senator Hatch and several of his Republican colleagues to dispel the conclusion evident from Justice Owen’s record that she is a right-wing judicial activist, a conclusion that played a significant role in the Judiciary Committee’s rejection of Owen’s confirmation. As the Committee majority recognized last fall, Owen’s record on the bench, particularly her record as one of the most frequent dissenters on her conservative court, demonstrates that Owen is often out of touch with and significantly to the right of the majority of the Texas Supreme Court, including members of the court appointed by then-Governor Bush, particularly in cases dealing with individual rights. Most important, the conclusion that Justice Owen is a judicial activist who would make law from the bench is reinforced by Owen’s own colleagues on the Texas Supreme Court, including current White House Counsel Alberto Gonzales and other justices appointed by then-Governor Bush. As these justices have explained, a number of the dissents that Owen has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens.

At Owen’s hearing on March 13, she attempted to explain away one of the most frequently cited criticisms of her judicial activism, namely, the statement in an opinion by Alberto Gonzales charging Owen and her fellow dissenters with an interpretation of law amounting to “an unconscionable act of judicial activism.” This concern was raised by Gonzales in a case dealing with a Texas parental notification law that requires minors who seek an abortion to notify their parents unless a court grants a “judicial bypass” under criteria established by the Texas legislature. In re Jane Doe 1(II), 19 S.W.3d 346 (Tex. 2000).

In this particular case, the Texas Supreme Court ruled 6-3 that the minor had “conclusively established the statutory requirements to obtain a judicial bypass.” Id. at 361. Owen dissented vigorously, accusing the majority, which included Bush appointees Gonzales, Baker, and Hankinson, of acting “irresponsibly.” Id. at 383. The majority specifically rejected the views of Owen and the other dissenters, explaining that the dissents’ efforts to make it much harder to obtain a judicial bypass contradicted the legislature’s judgment in enacting the statute and that, whatever their feelings about abortion, judges “cannot ignore the statute or the record.” Id. at 356.

Justice Gonzales not only joined the Court’s opinion in its entirety but also wrote a separate concurring opinion criticizing the dissenting opinions for advocating a “narrow construction” of the bypass provision nowhere found in the statute and “directly contradict[ed]” by its legislative history. Id. at 365-66. In fact, Gonzales specifically wrote that “to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that are simply not be found in the words of the statute, would be an unconscionable act of judicial activism.” Id. at 366 (emphasis added).

Owen’s supporters had previously tried to distance her from Gonzales’ criticism by claiming that his “unconscionable act of judicial activism” charge in Doe 1(II) referred to the dissents of other justices, but not to hers. For example, last July, Terry Eastland wrote that in Doe 1(II), “Justice Gonzales defended the majority against Justice Hecht . . . .” . At Owen’s first confirmation hearing, Senator Hatch joined this revisionist bandwagon, claiming that Gonzales was not referring to Owen’s dissent in his harsh criticism of the dissenters in Doe 1(II), but “rather to the dissent of another colleague in the same case.”

At her March 13, 2003 hearing, however, Justice Owen took a contradictory tack. She claimed not only that Gonzales’ “judicial activism” charge was not a reference to her dissent in Doe 1(II), but also that Gonzales had not been referring to “any” of the dissents when he issued that charge. The text of Gonzales’ opinion simply does not support this remarkable assertion. The very same paragraph in which the “judicial activism” charge appears begins with this statement: “The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof.” 19 S.W.2d at 365 (emphasis added). Gonzales went on to explain that these are “policy decisions” for the legislature, that there was nothing in the statute to show that the legislature intended such a “narrow construction,” and that attempting to construe the statute in such a narrow way would “[t]hus” be an “unconscionable act of judicial activism.” Id.

Moreover, Owen’s March 13 claim that Justice Gonzales’ “judicial activism” charge was not referring to any of the dissents in Doe 1(II), let alone hers, stands in sharp contrast to what Alberto Gonzales himself has said –- and not said -- about this matter. In his current capacity as White House Counsel defending the President’s judicial nominees, including Owen, Gonzales has had every opportunity to deny that his “judicial activism” charge in Doe 1(II) included Justice Owen’s dissent. To our knowledge, he has never denied this. To the contrary, Gonzales’ own post-Owen-nomination remarks about this very issue, trying as White House Counsel to minimize the importance of what he said in Doe 1(II), acknowledge that Owen was a target of his concurrence:

He [Gonzales] said his comments in the abortion case were the result of a strong disagreement over how to interpret a new law. “In this case, we both looked at the statute and disagreed, but this in no way detracts from my belief that she will be a fine judge,” he said.

This is consistent with remarks made earlier in 2002 by a spokesperson for Gonzales:

[O]pponents of Justice Owen are certain to recall a dispute that arose in 2000, when Mr. Gonzales was a fellow justice on the Texas court and Justice Owen was one of three court members who wrote dissents in a case involving a new Texas law regarding parental notification of abortions among minors. At the time, Mr. Gonzales suggested that the narrow reading of the law by the dissenters was ‘an unconscionable act of judicial activism.’ Anne Womack, a spokesman for Mr. Gonzales, minimized the significance of the disagreement. ‘Judge Gonzales’s opinion and Justice Owen’s dissent reflect an honest and legitimate difference of how to interpret a difficult and vague statute,’ Ms. Womack said..

Thus, despite the efforts of some of Owen’s supporters and Justice Owen herself to “set the record straight” by rewriting it, and notwithstanding Gonzales’ understandable support for Owen now in his current position, there can be no genuine question that Alberto Gonzales’ harsh criticism of the dissenters in Doe 1(II) as judicial activists included Priscilla Owen.

In a further attempt at the March 13 hearing to help Justice Owen dispel her own colleagues’ criticism of her as a judicial activist, Senator Saxby Chambliss asked Owen whether Alberto Gonzales had ever criticized her for “any decision you rendered, or your way in rendering it . . . .” Justice Owen answered that the “only thing that I’m aware of that has been said over and over again is that statement in the Doe case,” about which she had already testified.

This remarkable response is flatly contradicted by the facts. In the relatively short time that Gonzales served with Owen on the Texas Supreme Court, he wrote or joined numerous opinions sharply criticizing opinions written or joined by Owen on the court in a variety of cases concerning the rights of consumers and other citizens. In most of these cases, Gonzales, a strong conservative on the court, was part of the majority that rejected ultra-conservative Owen dissents as ignoring the plain meaning of the law or otherwise engaging in improper judicial activism to try to reach a particular result.

For example, in Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864 (Tex. 1999), Justice Gonzales wrote the majority decision that held that a Texas law requires manufacturers of harmful products to indemnify, or pay for, the litigation and related costs of sellers who are sued because of their sales of these and similar products. A dissent authored by Owen would have effectively rewritten Texas law to preclude holding the manufacturer liable in some cases. Gonzales wrote that adopting the manufacturer’s position, as Owen argued, would require the Court to improperly “judicially amend the statute.” 996 S.W.2d at 867 (emphasis added).

And in Montgomery Independent School Dist. v. Davis, 34 S.W.3d 559 (Tex.2000), Justice Gonzales and two other Bush appointees joined a 6-3 decision that upheld a lower court decision to reinstate a high school science teacher whose contract was improperly not renewed, even though a hearing examiner found for the teacher. Justice Owen again wrote the dissent. The majority specifically criticized Owen’s dissent, explaining that it “misconceives the hearing examiner’s role” under the applicable Texas statute and “disregard[s]…the procedural elements the Legislature established.” Id. at 567, 568. In fact, the majority pointedly noted that by “resolving conflicts in disputed evidence, ignoring credibility issues, and essentially stepping into the shoes of the factfinder to reach a specific result,” Owen’s dissent “not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the [School] Board.” Id. at 568.

Moreover, it is not only Justice Gonzales but also other justices on the Texas Supreme Court, including other justices appointed by then-Governor Bush, who have made it clear through their own words that Owen has sought to make law from the bench. For example, in Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex. 2001), Justices Baker and Hankinson joined the majority opinion that criticized the dissent by Justices Hecht and Owen, stating that the dissent’s view “defies the Legislature’s clear and express limits on our jurisdiction.” 73 S.W.3d at 182.

At the March 13 hearing, Senator Cornyn and Justice Owen attempted to mitigate this harsh reality by stating that, at one time or another, every justice on the court has been similarly criticized. But this explanation still leaves untouched the cumulative record compiled against Owen based on her colleagues’ criticism, as well as Owen’s record as one of the most frequent dissenters on her court. Nothing said at Owen’s March 13 hearing can change the fact that it is Justice Owen’s own colleagues who have said, in multiple cases, that she has tried to “judicially amend” or “write out” or “disregard” or “defy” the words of state statutes, or that she has tried to “radically depart” from prior precedent or engage in “judicial sleight of hand” to circumvent the state Constitution. These numerous statements by conservative judges on a conservative court, some appointed by President Bush himself, continue to demonstrate that Owen’s record of right-wing judicial activism would seriously endanger Americans’ rights if she is confirmed to a lifetime position on the Fifth Circuit.